On January 25, 2006, AFT, Local 212 (Union) filed a petition with the Wisconsin
Employment
Relations Commission (Commission) seeking to clarify an existing unit of paraprofessional
employees of
Milwaukee Area Technical College (MATC) that the Union represents for the purposes of
collective
bargaining by the inclusion therein of the positions of Coordinator, Technical Software
Support and
Financial Aid Coordinator. Subsequent to filing the petition, the Union and MATC were
able to resolve
the bargaining unit status of the Financial Aid Coordinator.

No. 10882-B

Page 2

Dec. No. 10882-B

MATC opposes the inclusion of the Coordinator, Technical Software Support,
arguing that (1)
the position had previously been excluded by the parties and a "deal is a deal," and (2) the
position is a
managerial employee and therefore not appropriately included in the bargaining unit. (1)

A hearing on the petition was held on May 17, 2006 in Mequon, Wisconsin, before
Commission
Chair Judith Neumann, with a stenographic record being made available to the parties. At
the hearing, the
Union, over the objection of MATC, amended its petition to seek, in the alternative, to have
the position
of Coordinator, Technical Software Support, included in the bargaining unit of MATC
professional
employees represented by the Union, in the event the Commission determined the position to
be
professional in nature. After the hearing, both parties filed briefs and reply briefs on or
before July 31,
2006.

For the reasons set forth in the Memorandum that follows, the Commission has
decided that
inclusion of the disputed position is not foreclosed by the "deal is a deal" policy and that the
Coordinator,
Technical Software Support is not a managerial employee, and hence should be included in
the bargaining
unit.

Having reviewed the record and being fully advised in the premises, the Commission
makes and
issues the following

FINDINGS OF FACT

1. Milwaukee Area Technical College (MATC) is a municipal employer that
provides post-high school educational services to thousands of students in the Milwaukee
area.

2. AFT, Local 212 (Union) is a labor organization that represents for purposes of
collective bargaining a unit of MATC employees described in the parties' most current
collective
bargaining agreement as follows:

(a) All paraprofessionals, excluding supervisors and
all other
employees as
described in WERC certification dated April 26 1972, Case 20,
Number 15306, ME-752, Decision No. 10882, and the WERC certification
dated June 12, 1987, Case #160, No. 38330 ME 154 Decision #24486, and
(b) certain recruiters, specialists, and technicians, excluding supervisors and all
other employees as described in WERC certification dated October 23, 1979,
Case 67, Number 23878, ME-

Page 3

Dec. No. 10882-B

1535, Decision No. 16507-C, April 17, 1996, Case 48, Number 3448,
ME-309,
Decision No. 28703 and (c) other paraprofessional positions agreed upon in
Memorandums of Understanding between the Board and the Union.

3. In the fall of 1996, certain previously unrepresented employees within
MATC's Information
Technology (IT) Division approached Union officials seeking to be included in the bargaining
unit
referenced in Finding of Fact 2, above. After investigating, the Union approached MATC
seeking to
accrete certain of these IT employees/positions into the bargaining unit. On
November 6, 1996, the Union
and MATC executed a Memorandum of Understanding (MOU) accreting the following IT
positions into
the above-referenced paraprofessional bargaining unit:

1. Computer Operator

2. Lead Computer Operator

3. Systems Specialist

4. Senior Systems Specialist

5. System Administrator ­ Network Infrastructure

6. Senior Systems Administrator ­ Network

7. Computer Installation Technician

8. Senior Computer Systems Installation Specialist

The MOU did not refer to any other IT positions, either as inclusions or exclusions.

4. At the time of executing the 1996 MOU, the IT Division included at least
three other
positions: a Data Base Specialist (at that time, Scott Petersen), a Supervisor of Network
Computing (at
that time, Michael Gavin), and a UNIX System Administrator (at that time, Brian
Germansun). After
ascertaining that each of those positions was occupied by only one individual and that none
of those
individuals wished to be represented, the Union, rather than "force anyone" into
representation, did not
seek to include those positions in the paraprofessional unit.

5. Neither at the time of the 1996 MOU nor at any time subsequently, until the
Union filed
the instant petition, did the Union and MATC discuss with each other the bargaining unit
status of the Data
Base Specialist position that existed in 1996 and was held by Scott Petersen, nor the
Coordinator position
that is the subject of the instant petition. The parties executed at least one collective
bargaining agreement
subsequent to the creation of the Coordinator position and did not amend the Recognition
Clause to include
or exclude the position.

6. The position of Data Base Specialist, held by Scott Petersen at the time of the
1996 MOU,
reported directly to the Director of Technical Services, as did the UNIX System
Administrator position,
held at that time by Brian Germansun. Neither position had supervisory authority at that
time. The job
description for the Data Base Specialist position

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Dec. No. 10882-B

specifically required a Bachelor's degree in Computer Science or related field, as well
as three years work
experience in the areas of UNIX systems administration, or "equivalent combination of
experience and
training." The principal duty of the Data Base Specialist was to ensure the integrity and
security of the
MATC computerized data base systems software.

7. At least as of September 1, 1997, a job description existed for a position with
the title
"Coordinator, Technical Software Support," with the principal duty of coordinating the
planning and
development of materials for instructional purposes. The position also had supervisory
authority, and
required "extensive knowledge equivalent to a Bachelor's degree in related [sic]; a minimum
of three (3)
years related occupational work experience; or any equivalent combination of training and
experience."

8. At some point after September 1, 1997 and before June 2, 2000, a new job
description
was developed for the position entitled "Coordinator, Technical Software Support," which
remains the
current position description for the Coordinator position at issue in the instant case. The
position
description describes the principal duty as ensuring the functioning, security, and integrity of
the MATC
databases and their hardware and software components. The position description states that
the position
reports to the Director, Technical Service and Support and requires "a two-year Technical
degree in
Computer science or related field and three years work experience in the areas of UNIX and
database
systems administration; or any equivalent combination of training and experience which
provides the
necessary skills" to perform a series of listed duties.

9. On June 2, 2000, MATC posted a vacancy for the Coordinator position,
describing the
position, the qualifications, and the lines of authority as indicated in the position description
referred to in
Finding of Fact 8, above. Geri Wang successfully applied for the position and has remained
the incumbent
in the position at all relevant times. Although the posting indicated that MATC was seeking
two employees
for the position, Ms. Wang has been the sole incumbent. Since at least June 2, 2000,
MATC has not
employed anyone in the position title of Data Base Specialist, previously held by Mr.
Petersen. The Union
was not aware that Mr. Peterson had left or that Ms. Wang had substantially assumed his
duties until,
shortly before the instant petition was filed, Ms. Wang approached the Union and sought to
be included
in the paraprofessional bargaining unit.

10. Ms. Wang holds a Masters Degree in Computer Science.

11. On March 29, 2001, MATC posted a vacancy for a position entitled
"Manager, UNIX
Systems Support." The posting indicated that the position would report to the Director,
Technical Services,
and that its principal duty would be the manage the implementation and administration of
MATC's UNIX
computer systems, databases and various Internet services. A second principal duty is to
"[e]nsure[s] the
integrity, performance, reliability, currency and security of the district's UNIX system's
applications and
databases." The qualifications were described as "extensive knowledge equivalent to a
Bachelor's
Degree in computer science and three years work experience in UNIX computer systems
administration
and database support;

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Dec. No. 10882-B

demonstrated team and project leadership; or any equivalent combination of training
and experience to
provide" a set of listed knowledge, skills, and abilities. At the time of hearing in this
matter, this position
was held by Thomas Bass.

12. At all relevant times, the Coordinator has reported to and been supervised by
the UNIX
Systems Support Manager, Mr. Bass, and is the only position that Mr. Bass supervises.

13. The duties Ms. Wang performs as Coordinator are substantially but not
entirely the same
as the duties Mr. Petersen performed as Data Base Specialist, including those he performed
at the time of
the 1996 MOU.

14. Like the Division Director and the UNIX Manager, Ms. Wang is available 24
hours per
day, seven days per week, in the event the systems she is responsible for need emergency
repairs or
maintenance. She is the only MATC employee who is familiar with and responsible for what
MATC refers
to as its "Cosmo" system, a set of databases supplied by the Datatel vendor, that support the
software
programs necessary for MATC's registration, admissions, counseling, payroll, human
resources, finance,
and purchasing functions. She also has responsibility for certain Oracle databases, including
the systems
that run MATC's on-line classes.

Most of the databases that Ms. Wang maintains are run on the UNIX operating
system, for which
her supervisor, Mr. Bass, has primary responsibility. Ms. Wang works most closely with
MATC
employees in the "Client Services" or "Information Technology" area, who work in the same
building with
her and use various software programs/applications that depend upon the Datatel database.
Both Mr. Bass
and Division Director Michael Gavin work in a separate building. Mr. Gavin has minimal
day to day contact
with Ms. Wang and is not in a position to observe her work performance.

The Client Services Manager, Georgiana Gormley, generally informs Ms. Wang
when
a correction
or "patch" is needed in order to correct or improve the functioning of the various software
applications.
The vendor, Datatel, generally informs Ms. Wang when an upgrade or a patch is available,
at which point
Ms. Wang will consult with Mr. Bass and Ms. Gormley to determine the best time to install
the upgrades
or patches, taking into consideration the urgency of the need and the least interruption to
College
operations. Occasionally it may be necessary to shut the system down entirely in order to
properly correct
a problem or install an upgrade, in which case Ms. Wang takes direction from Mr. Bass and
other
managers as to the best time to undertake the project. If Ms. Wang is unable to resolve a
problem
regarding Datatel, MATC must resort to the vendor for assistance. Ms. Wang's
responsibility for the
Datatel/Cosmo databases requires her (along with Mr. Bass and Director Gavin) to have full
"root access"
to MATC's IT systems, but other employees, particularly those in the Client Services
section, also have
varying degrees of root access. Ms. Wang theoretically could block a user from the system,
but has never
been asked to do so. When such blocking has

Page 6

Dec. No. 10882-B

been required ­ for example, in connection with the termination of an MATC
employee ­ Mr. Gavin or
his superior generally authorizes/implements the blocking procedure.

15. Ms. Wang plays no role in developing the budget for the IT Division. She
does not
effectively recommend any significant purchases and has no authority to make expenditures.
She does not
attend management team meetings. She does not supervise any employees. Her supervisor,
Mr. Bass,
is occasionally consulted by Mr. Gavin when Gavin prepares his section of the Division's
budget.

16. Ms. Wang does not select, design, or recommend software, nor does she set
or maintain
standards governing the use of data. She does not decide who has access to various
databases. She does
not design backup and recovery procedures, but utilizes procedures that have been in
operation since prior
to her arrival. She does not access or oversee user data files. Her interaction with the
database software,
while extremely important to the functioning of the College, is largely ministerial. (2)

17. Ms. Wang currently is paid an annual salary of approximately $64,000. The
five Computer
Network Administrators who are also in the Technical Services section, and who are all
members of the
bargaining unit, report directly to Director Mike Gavin and earn more than Ms. Wang. Ms.
Wang's
supervisor, Mr. Bass, earns approximately $1500 more than Ms. Wang.

18. In addition to the five Computer Network Administrators referred to in
Finding of Fact 17,
above, the bargaining unit presently includes several other employees in the IT Division,
including a
Telecommunications Specialist, 12 Computer Support Specialists, two Graphic Arts
Computer Support
Specialists, a Senior Computer Installation Technician, three Computer Installation
Technicians, a CBO
Computer Support Specialist, and 10 Information Technology Consultants (also called "Client
Services"
consultants). The positions within the IT Division who are presently not included in any
bargaining unit are
the four Section Directors, the Manager of the Help Desk, and the Administrative Specialist
who works
directly under the Division Manager (the Associate Vice President for Information
Technology).

19. There is no clear evidence that the parties mutually agreed to exclude the
Coordinator
position from the bargaining unit.

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Dec. No. 10882-B

20. The Coordinator position has been affected by a material change in
circumstances
subsequent to the time of the 1996 MOU, when the Union did not seek to include the Data
Base Specialist
position, in that the latter position was excluded solely because the incumbent expressed a
desire not to be
represented, and that individual is no longer the incumbent.

21. The Coordinator, Technical Software Support does not sufficiently participate
in the
formulation, determination or implementation of management policy, or possess sufficient
authority to
commit the employer's resources to be a managerial employee.

Based on the above and foregoing Findings of Fact, the Commission makes and
issues
the
following

CONCLUSIONS OF LAW

1. There is no agreement between MATC and the Union to exclude the
Coordinator,
Technical Software Support position from the paraprofessional bargaining unit, and thus the
Union is not
barred from seeking to include the Coordinator in the bargaining unit through the instant unit
clarification
petition.

2. The Coordinator, Technical Software Support is not a managerial employee
within the
meaning of Sec. 111.70(1)(i), Stats., and is therefore a municipal employee within the
meaning of Sec.
111.70(1)(i), Stats.

Based on the above and foregoing Findings of Fact and Conclusions of Law, the
Commission
makes and issues the following

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Dec. No. 10882-B

ORDER CLARIFYING BARGAINING
UNIT

The Coordinator, Technical Software Support is included in the paraprofessional
bargaining unit
represented by the Union.

Given under our hands and seal at Madison, Wisconsin, this 15th day of November,
2006.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Judith Neumann, Chair

Paul Gordon,
Commissioner

Susan J. M.
Bauman, Commissioner

Page 9

Dec. No. 10882-B

MILWAUKEE AREA TECHNICAL COLLEGE

MEMORANDUM ACCOMPANYING FINDINGS
OF FACT,

CONCLUSIONS OF LAW AND ORDER
CLARIFYING BARGAINING UNIT

DISCUSSION

MATC challenges the Union's petition to include the Coordinator in the
paraprofessional bargaining
unit on two grounds: that the position has been excluded by agreement of the parties and
does not fall within
any of the exceptions to the "deal is a deal" policy; and that the incumbent Coordinator is a
managerial
employee not properly included in any bargaining unit. Each of these arguments is addressed
below.

1. The "Deal is a Deal" policy

For over thirty years the Commission has declined to clarify bargaining units in a
manner that
contravenes parties' voluntary agreements regarding the scope of their bargaining units,
except under
certain conditions. Northern Ozaukee School District, Dec. No. 14211-C (WERC,
9/05) at 8.
As the Commission noted in that case, "the pragmatic policies favoring voluntary unit
composition are an
entrenched, well-established, and time-tested element of the Commission's regulatory
procedures [and]
the Commission continues to find value in the 'deal is a deal' policy."
Id. The purpose of the "deal is a
deal" policy is to honor voluntary resolution of issues related to the contours of a bargaining
unit, in order
to foster bargaining between the parties and increase the efficiency of the Commission's
election
procedures. Northern Ozaukee, supra., at 8.

On the other hand, the "deal is a deal" policy is itself a pragmatic exception to the
Commission's
statutory obligations to ensure that bargaining units are lawful and that the statutory
definitions within Sec.
111.70(1), Stats., are accorded a proper and uniform interpretation. Hartford Union High
School
District, Dec. No. 23116-C (WERC, 6/06) at 24. To ensure that the pragmatic
considerations do not
unduly interfere with the Commission's underlying responsibilities, the Commission has
identified four
situations in which the "deal is a deal" policy will not be applied:

1. The positions in dispute did not exist at the time of the
agreement.

2. The positions in dispute were voluntarily included or excluded
from the unit
because the parties agreed that the positions could or could not be statutorily
included in the unit because the incumbents were not or were supervisors,
confidential, managerial, professional, or craft employees.

3. The positions in dispute have been impacted by changed
circumstances which
materially affect their unit status.

4. The inclusion or exclusion of the positions is repugnant to the
Municipal
Employment Relations Act.

Page 10

Dec. No. 10882-B

Id. (citations omitted).

It is elemental to the "deal is a deal" policy that the exclusion or inclusion of a
position was
produced by an agreement. Here, there is no explicit agreement between the parties to
exclude the
Coordinator. While MATC correctly argues that such an agreement need not be explicit, the
agreement
nonetheless must be mutual and clear. Id. at 25, quoting
Wisconsin Dells School District, Dec. No.
24604-C (WERC, 10/92): "unless we are satisfied that the agreement was clearly understood
by all parties,
we will not honor same ."

Contrary to the Union's argument and consistent with our view that the "deal" need
not be explicit,
we might have found sufficient knowledge, clarity and mutuality between the Union and
MATC to establish
a "deal" if the Union were seeking Mr. Petersen's inclusion in the position of Data Base
Specialist, since
clearly both parties were aware the position existed and both parties acquiesced in its
exclusion in 1996.
However, where the relevant work force is large, diverse, and subject to relatively frequent
changes in
composition and job titles, we will not attribute an "implicit" agreement to exclude the
Coordinator position
without some evidence that the Union was actually aware of the change in title and
incumbent. (3)

Such
evidence is not present in the record. Thus, we conclude that there is no "deal" that bars the
Union's effort
to seek inclusion of the Coordinator.

Assuming arguendo that a "deal" did exist, the third
exception to the "deal is a deal" policy would
be implicated here. It is undisputed that the only reason the Union did not seek to include
the Data Base
Specialist position in the 1996 MOU was that Mr. Petersen was the sole occupant of the
position and did
not wish to be represented. Even assuming that Ms. Wang's now re-titled Coordinator
position is
essentially the same as Mr. Petersen's former position, the material circumstance for the
position's
exclusion ­ Mr. Petersen's wishes ­ is no longer operative. Given the
Commission's overriding
responsibilities to protect employee representation rights and the proper contours of
bargaining units, any
"deal" was extinguished when Mr. Petersen left the position.

. . those who participate in the formulation, determination and implementation of
management policy or possess effective authority to commit the employer's resources.

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Dec. No. 10882-B

The Court went on to discuss why the policy component of the Commission's
managerial definition
was consistent with the Municipal Employment Relations Act. The Court stated at 717 the
following:

The exclusion of management personnel, as well as certain other categories, such as
supervisors and executives, indicates that not all municipal employees are to have the
benefit of dispute resolution through collective bargaining. However, the ability of a certain
category of employees to effectuate and implement management policy does not
necessarily indicate that they should be precluded from protection by the statute. The
definition that has been formulated by WERC effectively distinguishes those categories of
employees whose interests are shared by persons engaged in a managerial capacity from
those categories who are otherwise employed. By defining the managerial exclusion so as
to encompass those who formulate and determine policy, as well as implement it, WERC
formulated a definition which is consistent with the purposes of the Act and the legislatively
expressed intent to exclude managerial employees.

Thus, it is clear that to be a managerial employee based on one's policy role, the
employee must
"formulate and determine policy, as well as implement it." Thus, for instance, applying this
policy test for
managerial status in Eau Claire County v. WERC, 122 Wis. 2d 363 (1984), the Court of
Appeals
concluded that a register in probate was not a policy-based managerial employee because the
circuit court
had final approval over all of the position's activities.

Lastly, it is important to emphasize that not all policy determinations qualify an
individual as a
managerial employee. Consistent with the purpose of the managerial exclusion as one which
serves to
distinguish individuals whose interests are distinct from those employees in the bargaining
unit, policy making
must be at a "relatively high level" to warrant managerial status. Taylor County, Dec. No.
24261-E
(WERC,7/97)

As noted above, the second path to managerial employee status involves the effective
authority to
commit the employer's resources. In Kewaunee County v. WERC, 141 Wis. 2d 347, at 355,
(1987),
the Court of Appeals affirmed the Commission's determination that "effective authority to
commit the
employer's resources" at a managerial level means possessing:

. . . the discretionary power to determine the type and level of services to be
provided and
the manner and means by which those services will be delivered.

and involves:

. . . determining the services required, the number of persons necessary to deliver
those
services, and the quantity and type of equipment and supplies required to provide those
services.

Page 12

Dec. No. 10882-B

Contrary to MATC's argument, the evidence falls far short of meeting either the
policy or the
resource criterion for managerial exclusion.

It is true, as MATC claims, that the Coordinator has the same level of access to the
databases as
her immediate supervisor, Mr. Bass, and the Section Director, Mr. Gavin. Although she has
rarely if ever
used said "root access" and seemed unaware that she had it, such access could be necessary
in the event
of an urgent problem affecting the entire UNIX operating system or the Datatel database. It
is not clear
on this record that such "root access" carries with it any kind of policy function or
managerial discretion,
but, if it does, it falls short of the high level policy formulation needed for managerial
status.By the same
token, even if Mr. Bass had been shown to have managerial authority (which this
record does not
establish), the sporadic performance of managerial authority while Ms. Wang's substitutes
for Mr. Bass
during his vacations or sick days would not transform her into a managerial employee
herself. See
Shawano County, Dec. No. 15257 (WERC, 3/77)

MATC also argues that the Coordinator "is responsible for
the operation and allocation of
resources with respect to which patches or repairs are to be performed, whether the entire
system must
be shut down and recommending whether an employee of MATC may have access to the
system that has
entailed an investment of millions of dollars." MATC Brief at 9. There is no evidence that
Ms. Wang is
in a position to or has ever been asked to decide or recommend whether another employee
will have
access to "the system." Moreover, the evidence is clear that Ms. Wang does not and has
never initiated
a recommendation regarding patches or repairs, but instead those recommendations are
generated by the
Client Services employees (most of whom are in the bargaining unit) who use the
applications and therefore
encounter the issues/problems, or by the vendor who develops and recommends system-wide
upgrades
to the Datatel product. In any event, such responsibilities would fall short of the "service"
level type of
resource choices that are necessary for managerial status.

There is no evidence that the Coordinator has any budgetary role at all or that she is
ever in a
position to make or effectively recommend discretionary expenditures of any significant
amount. She never
attends managerial meetings. Indeed, the Union quite accurately sums up her role as
"limited to the
implementation of decisions made by her superiors or work orders given to her by her
organizational
peers." Union Brief at 14. Although the system or portions of it may need to be "shut
down" in order for
the Coordinator to perform some of her work, the evidence shows that the timing of said
shut-downs is
literally dictated by one or more of the Section Directors and very little of it is within the
Coordinator's
discretion. The fact that she uses MATC resources that cost millions of
dollars does not mean that she has
managerial discretion over those resources or over the underlying dollars.

Contrary to MATC's argument, the Coordinator position is not comparable to the
"Network
Administrator" in Vernon County, Dec. No. 13805-J (WERC 4/04) that the Commission
held to be
managerial. In that case, the Commission took pains to point out that, unlike many
employees with the title
"network administrator," the individual in Vernon County spent 25% to 50% of her time on
policy
development and effectively recommended all

Page 13

Dec. No. 10882-B

County purchases as to software, hardware, and networking equipment. She also
attended weekly
management/supervisory meetings, where policy decisions were made. The Coordinator at
issue here has
no responsibilities that are similarly managerial in nature.

For the foregoing reasons, we hold that the Coordinator, Technical Software Support
is not a
managerial employee and therefore is a "municipal employee" within the meaning of Sec.
111.70(1)(i),
Stats. who should be included in the paraprofessional bargaining unit represented by the
Union.

Dated at Madison, Wisconsin, this 15th day of November, 2006.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Judith
Neumann, Chair

Paul Gordon,
Commissioner

Susan J. M.
Bauman, Commissioner

gjc

10882-B

1 At hearing, MATC also argued that
the Coordinator was a professional employee within the meaning of
Sec. 111.70(1)(L), Stats., who could not appropriately be included in the
paraprofessional bargaining unit. MATC did
not assert or offer support for this contention in its post-hearing briefs in this matter.
Accordingly, we deem this
argument to have been waived. However, consistent with our statutory obligation not to
include professional employees
in non-professional units unless the professional employees have so voted, we note that the
record evidence supports
the Coordinator's status as a paraprofessional but not a professional employee.

2 Each of the duties referred to in
Finding of Fact 14 appears in the current job description for the Coordinator, Technical
Software Support and is cited by MATC as evidence of the incumbent's managerial
authority. Section Director Gavin
testified that it was his belief that Ms. Wang performed said duties. Ms. Wang testified
firmly and consistently that she
did not. We attribute the discrepancy in their testimony largely to a difference in their
respective interpretations of the
terminology used in the job description. Since Mr. Gavin admittedly had little opportunity to
observe Ms. Wang's day
to day job activities, and since the difference between his testimony and that of Ms. Wang
relates more to how her duties
should be characterized than to the specific tasks she performs, we have accepted Ms.
Wang's description of her duties
and we have characterized them as indicated in the Findings of Fact, above. To the extent
this characterization differs
from the job description, we find the job description to be inaccurate.

3 In this respect, the situation here is
fundamentally different from that in School district of Coleman, Dec. No. 21569
(WERC, 4/84), involving the exclusion of a single nurse position from a very small teacher
bargaining unit, where the
nurse position existed and been tacitly excluded at the time of voluntary agreement and
during several subsequent
contract cycles, and there was no question both parties were aware of its existence.